Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Nicholas Winterton: As you can see, I am back in the Chair. I express the hope that you missed me last week. I welcome you all to this sitting of the Crime and Security Bill on what is a bright and pleasant day at the moment although further snow is forecast. I hope that does not cast a damp, cold shadow over our proceedings this morning and this afternoon.
I remind the Committee that there is now a Ways and Means resolution as well as a money resolution in connection with the Bill. I am pleased to advise Committee members that copies are available in the Committee Room.

Clause 21

Power to issue a domestic violence protection notice

Question (4 February) again proposed, That the clause stand part of the Bill.

Nicholas Winterton: I remind the Committee that with this we are taking new clause 28Definition of domestic violence
(1) Domestic violence is defined as an incident of
(a) threatening behaviour,
(b) violence, or
(c) abuse, whether physical, sexual, financial or emotional, committed by a person (P) on an adult who is or has been an intimate partner or family member of P, regardless of the gender or sexuality of either person, and which is one of a series of such incidents.
(2) Abuse under subsection (1)(c) may include
(a) destruction of a spouses or partners property;
(b) isolation of a spouse or partner from friends, family or other potential sources of support;
(c) threats to others, including children;
(d) control over access to money, personal items, food, transport, and telephone services; and
(e) the effect of any of paragraphs (a), (b), (c) or (d) on children..

David Hanson: Thank you very much, Sir Nicholas. What a pleasure it is to be here again with you in the Chair. Please pass on our best wishes to Mr. Cook, who presided over last weeks proceedings in a most exemplary manner; we had a good and enjoyable time. I am sure that you have read the proceedings of the Committee and seen what fun we had last week.
The debate that commenced on Thursday morning covered clause 21 stand part and new clause 28 in the name of my hon. Friend the Member for Stoke-on-Trent, South. We had a useful discussion and this morning I refreshed my memory of the debate by examining Hansard. I think there is general agreement among all Committee members that tackling domestic violence remains a key issue.
Domestic violence still accounts for about 14 per cent. of all violent crime, although violent crime generally is falling. We remain concerned, as do the hon. Members for Hornchurch and for Carshalton and Wallington, that the impact of domestic violence is devastating not only for victims and their families, but also for communities. Trying to resolve domestic violence issues occupies considerable police and other agency time.
Clearly and crucially, domestic violence is not a one-off incident; there is often a pattern of abusive and controlling behaviour through which the abuser seeks power and control over their victim. Agencies face a range of difficulties, and over the past 10 years, we have put in place legislation and policy objectives to reduce the incidence of domestic violence, give greater legal powers to take action against perpetrators and provide better support mechanisms. The Domestic Violence, Crime and Victims Act 2004 introduced specialist domestic violence courts and put in place 720 fully trained independent domestic violence advisers. Therefore, the Committee can see that this is a serious matter for the Government. Arrests are rising and conviction rates are growing. I am certainly not complacent about the issue.
The Family Law Act 1996 and the 2004 Act introduced important measures, such as non-molestation orders and occupation orders, which are designed to help secure the victims protection in the longer term.

James Brokenshire: One point that has been raised is the use of section 60 of the Family Law Act, to allow a third party to initiate proceedings on behalf of an alleged victim. My understanding is that the provision is not yet in force. The Minister highlights various measures in the 1996 Act that have been introduced, but do the Government intend to bring that section into effect? It would provide another route to allow third parties to bring actions on behalf of a victim. Clearly, that is part and parcel of the Governments proposals, so has that provision been considered?

David Hanson: I am grateful to the hon. Gentleman for raising that point, because section 60 is an important provision. It has yet to be implemented, as was raised in the evidence sessions, so it has been discussed as part of our consideration of the Bill. However, the domestic violence protection orders that the clauses are committed to are substantially different. Section 60 makes provision for third parties to apply only for protection orders, whereas the DVPOs under this clause and others do three important things. They allow the police to take the first step to issue a protection order; they offer immediate protection in the aftermath of an incident of domestic violence and they give the victim crucial protection and breathing space, which is the determinant factor that we are trying to establish.

James Brokenshire: The Minister is right to highlight the distinctions between the section 60 regime and the one contemplated by virtue of the domestic violence protection notice. Do the Government still intend to bring that section into effect as an additional measure, sitting alongside the new provisions, given the concern that has been rightly raised about the clearly described gap in support provided for the victim?

David Hanson: I appreciate the way that the hon. Member for Hornchurch has brought forward that point. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Tynemouth, in conjunction with colleagues from the Ministry of Justice and the Government Equalities Office, under the Minister for Women and Equality, my right hon. and learned Friend the Member for Camberwell and Peckham, are developing a strategy on violence against women. One issue they are reflecting on is how and when we can implement section 60. That is something that I hope we can resolve in the near future when the strategy is finally produced, which I expect to be shortly.
Having said that, we found that there is still a gap in the protection of victims of domestic violence. The issue before the Committee relates to the domestic violence protection order, to ensure that we have orders in place to stop an aggressor returning not just to the house but to the whole area. The order would set aside a period of time for that individualmale or femaleto be away from the vicinity of the potential domestic violence. Clause 21 and the others in this part of the Bill will cover that issue.
Clause 21 is about providing the victim with counselling support, practical options for getting away from the violent partner and securing protection in the longer term. Unlike existing measures, the DVPN would offer the victim crucial support and protection in the immediate aftermath of the domestic violence incident.
The order would prohibit the perpetrator from molesting the victim, including being violent or threatening violence, and may also prevent the perpetrator from entering a shared residence. There is a clear test in clause 21 for issuing a domestic violence protection notice. We have debated it on the Floor of the House and in the evidence sessions to the Committee. The basic purpose is that a senior police officerof superintendent rank or abovecould issue a domestic violence protection notice when they have reasonable grounds for believing that the suspected perpetrator has been violent or has threatened violence towards an associated person, and when the officer believes the notice is necessary to secure the protection of the victim from further violence.

Tom Brake: When I met my local police to discuss the proposals in the Billin particular those relating to domestic violencethey confirmed that there are circumstances in which the police arrest both parties because it is difficult to distinguish who is the most significant perpetrator. Has the Minister any thoughts about whether there might be circumstances when both parties might be issued with a notice and what would happen?

David Hanson: We know that there are occasions when there are counter-allegations between both parties. Domestic violence is rarely a one-off event and can often involve both parties at different times. I am not being judgmental about that; there can be occasions when that happens, although most of the time, I suspect, it is one party versus another. By the time the police have reason to believe that such a notice as proposed in the Bill could be issued, there will usually have been extensive background to the case. It will not have been a one-off. The police may have visited the property before. They have to intervene in the case because they know they will have to go back the following weekor even the following dayif they do not. There will be history. Even if there are counter-allegations, I expect there to be an investigation leading up to the issuing of a DVPN, and that there will be potential for such an investigation to take place.
We have also said that, if given legislative backing, the proposal would be a pilot. One of the key things we are looking at is establishing two pilots with a view to rolling out the scheme six months later. I am looking at one large force and one small force. Brian Moore, the chief constable of Wiltshire, is keen to have a pilot in his force, so we are looking at Wiltshire plus one other force, although no decisions have yet been taken. The types of things a pilot would look at are the way the order operates on the ground, and the concerns raised by the Committee and in the evidence sittings about superintendent ranks having authorisation, their availability and so on. The order could be made for both parties, but that would be difficult because excluding both parties from the home depends on where they would go. The purpose of the order is to keep one party away from another so that no domestic violence occurs. It may be simpler to determine who the major party is and exclude them from the home; otherwise, we might end up with both parties continuing the argument at another venue.

James Brokenshire: The effectiveness of the orders will rely in large measure on the support services that sit alongside the provisionswe will address that in other clauses. However, is the order intended to operate when there is a specific domestic violence court? The successes and improvements we have seen have tended to result from situations in which victim and perpetrator do not come into contact with one another due to the lay-out and design of the court. It would be interesting to hear what discussions the Minister has had with his colleagues at the Ministry of Justice on the operation of the notice and on some of the practical issues where victim support may be key to ensuring a positive outcome.

David Hanson: We have certainly had discussions and, as stated on the back of the Bill, it is supported by Mr. Secretary Strawthe measures have the support of the Ministry of Justice. There is no problem with that. We need to look at some of the downstream issues, because they are important. Support for a victim not only after, but during, an order is important. We are planning to use magistrates courts. As part of the pilot, there may be issues relating to access to victim support that are particularly important for us to focus on. I hope that the Committee will accept the initial principle of establishing a legislative framework for the removal of a potential offender from a property and the need to look at how that works in practice.
I will touch on two other issues that have been raised. The first was raised by my hon. Friend the Member for Stoke-on-Trent, South and I pay tribute to him for doing so in such a constructive way. Clause 21(2)(a) states:
P has been violent towards, or has threatened violence towards, an associated person.
That has given rise to concerns, as voiced by the hon. Members for Carshalton and Wallington and for Hornchurch during last Thursdays debate, as to who an associated person would be, and it is the nub of the new clause tabled by my hon. Friend the Member for Stoke-on-Trent, South. In the Family Law Act, the definition of an associated person is wide, and covers a child of the perpetrator or a child living in the same household as the perpetrator. When there are multiple victims, multiple domestic violence prevention orders could be made to prevent the perpetrator from molesting each of them. A partner or a child could be identified as an associated person in need of an order. I hope that helps the Committee.
I can see what my hon. Friend aims to achieve with new clause 28. It focuses on ensuring that the Committee appreciates the concern about domestic violence against children, who may sadly be involved in many cases. I hope that I can assure my hon. Friend and the Committee that under clause 21(2)(a), about an associated person, children could be protected either directly or indirectly by the domestic violence protection notice or the DVPO. The Bill provides that both the notice and the order will be available to protect the person associated with the perpetrator, within the meaning of the Family Law Act. An associated person could be the child of the perpetrator, the child of the perpetrators spouse or the child of a person with whom the perpetrator is cohabiting or has cohabited, and/or a child living in the same household as the perpetrator but not a direct blood relative of either. The order could be obtained in respect of a child falling into any of those categories, and if a child has not been a direct victim but their mother has, it is possible to obtain an order in relation to the mother, which would give indirect protection to the child by preventing the perpetrator from continuing the violence. I am confident that the measures in the Bill are helpful, not just to the victim but also to any children.

James Brokenshire: I have listened carefully to the Minister, and he has helped to make clear the ambit and extent of domestic violence protection notices in relation to children. Will the Minister make it clear whether separate DVPNs would need to be issued to children and the spouse or other victim of domestic violence? That would have knock-on connotations.

David Hanson: If I am not correct I shall reflect on the matter, but I understand that a non-molestation order would be issued against each individual in the property, but under one domestic violence protection notice. If there is a need for further clarification, I shall give itperhaps in a moment.

James Brokenshire: On a point of clarification, the domestic violence protection notice talks about a person in the singular, but I assume the Minister was saying that notices had to be multiple, with one for each person to be protected. Obviously, that may have knock-on connotations regarding whether individual court hearings would be required, and what the interrelationship may be. For example, the facts may be made out in relation to a child but perhaps not in relation to the partner or another person living in the house. Have I properly understood that, or does a different mechanism apply in those circumstances?

David Hanson: If the hon. Gentleman will allow me, I shall reflect on that matter in a moment and return to it. Our record of the debate can ultimately lead to case law, and I therefore want to ensure that what I say is entirely correct.
I hope that my hon. Friend the Member for Stoke-on-Trent, South will withdraw new clause 28. He has, nevertheless, made an extremely important point.

Nicholas Winterton: Order. The new clause has not been formally moved.

David Hanson: I ask my hon. Friend not to move the new clause. Ultimately, it may be absorbed in our wider discussions, Sir Nicholashowever, we phrase that. It has been a long time since Thursday when we started this debate.
My hon. Friend made an important point about new clause 28. Although I maintain that the new clause and the proposed definition would not have a significant effect on the Bill because of what I have said to date, I should like to make sure that we effectively address his concern. I would be willing to consider an amendment on Report to ensure that we address the needs of child victims. I would be happy to work with my hon. Friend to do that. I hope that helps him.
There would need to be a separate domestic violence protection order for each victimto take in the point that the hon. Member for Hornchurch made. But if the purpose is to exclude from the home, I understand it could be addressed by a domestic violence protection order against one individual. I will check up and clarify these points for the hon. Gentleman. The issue will not cause a great deal of difficulty. Whatever the current status of new clause 28, I ask my hon. Friend the Member for Stoke-on-Trent, South to let us reflect on the points he has made. I hope that the Committee can endorse clause 21.

Robert Flello: It is a pleasure to see you in the Chair, Sir Nicholas.
The impact of domestic violence on children is horrendous. It can manifest itself in many different ways. We should do all we can to protect children in such circumstances and recognise that children are adversely affected. It is not just direct threats of violence against children, which is why I do not think that subsection (2)(a) covers all the eventualities. My hon. Friend the Minister has clearly given careful thought to this important issue. I, too, will consider what has been said very carefully and perhaps look to tabling a revised new clause on Report, so I beg to ask leave to withdraw the new clause at this stageor not move it.

Nicholas Winterton: Order. We are debating new clause 28 with clause 21 stand part. The hon. Gentleman does not need to withdraw it. If it were to be put to the Committee he could withdraw it, but that will come much later in our deliberations.

David Hanson: I am glad that somebody knows what is going on.

Nicholas Winterton: It has just been whispered to me from my left by an unknown member of the Committee that the Chairman knows everything that is going onmost of the time.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Clause 22

Contents and service of a domestic violence protection notice

James Brokenshire: I beg to move amendment 153, in clause 22, page 61, leave out lines 37 to 43.
Our debate on the previous clause has been helpful and instructive and may shape some of our further debates on the more detailed interpretation and application of the remaining provisions on domestic violence. One key issue that arises from the issuing of a domestic violence protection notice is that under subsection (1)(c)
an application for a domestic violence protection order under section 24 will be heard within 48 hours of the time of service of the DVPN and a notice of the hearing will be given to P
P being the person suspected of having committed the act.
My hon. Friend the Member for Woking (Mr. Malins) made a point on Second Reading about the timing of these issues. He said:
I do not see how a substantive hearing can take place within 48 hours. An interim hearing might, but we do not talk about interim hearings here. Frankly, most courts would want a little help and evidence when they first come to hear the case.[Official Report, 18 January 2010; Vol. 504, c. 80.]
In making those comments, my hon. Friend lit on an important issue: what we mean when we state in the notice that a hearing will take place in relation to the domestic violence protection order. It seems to me that it would not be final or substantive. It may be, but it seems unlikely, given the need to take into account evidence and facts, and the ability to assess the import of the DVPN properly.

Douglas Hogg: I understand my hon. Friends anxiety, but I wonder whether it is met by this answer. Under clause 24(8) one finds that magistrates may adjourn the hearing of the application. In other words, they can treat the first hearing, if they so choose, as an interim hearing, because they have the power to adjourn.

James Brokenshire: My right hon. and learned Friend is right to highlight that point. It flags up a slightly different issue that I was moving on to, which is that the notice implies that the authorisation from the constable is limited to a 48-hour period. In fact, it is likely to be much longer if there is an adjourned hearing. Obviously, the DVPN may last for a much longer period, because it remains in effect until the matter has been dealt with by the court. As I understand it, at that stage the authorisation is by virtue of the issuance of the DVPN.
The amendment is probing, to elicit and understand better the reasons for stating matters on the notice, and whether further clarity should be applied, to make it clear that although the initial hearing will be within 48 hours, that does not mean that the DVPN ends at that point. It can continue until the domestic violence protection order has either been granted or the application dismissed as having not been made out, on the grounds set out in clause 21. The court may not have enough evidence to decide whether a domestic violence protection order should be granted. There may be other delays. The DVPN remains in effect until the application has been determined. Specifying that in the notice appears not to permit any flexibility on the part of the court.
There is also a question about how the notice interrelates with subsequent provisions. For example, a notice may have been prescribed in the terms set out under clause 21(8), on what may be contained in the DVPN, such as provisions relating to entering or leaving premises. Once the notice has been granted, on the authorisation of the constable, my reading of its interrelationship with other provisions is that the court cannot change the DVPN, even though, having regard to the way the facts have been presented, it may be appropriate to do so. An initial assessment of the facts may give a particular impression, but the fact that in subsequent interviews, other evidence and information may come to light does not appear to allow modification or adjustment to the content of the DVPN once it has been granted. Is that the intention? Perhaps, as we heard in the preceding debate, there may be confusion as to who the chief protagonist is. Should there be flexibility for the court, or the issuing officer, to modify the terms of the DVPN, should additional information come to light that may make it inappropriate?
For example, if P is already subject to other criminal sanctionssuch as another order or bail conditionsthe DVPN may conflict with the terms of the bail conditions or the other order. It may, for example, prescribe that someone should be in particular premises. The implications of the issue of a DVPN on other orders and other issues that may be before the court may not be immediately apparent. How could that be addressed and what flexibility is there to deal with competing interests between existing conditions and new conditions that may be set down in a DVPN?

Douglas Hogg: My hon. Friend has a point although I do not think that it is quite addressed by the amendment. A bail condition may be imposed on a person requiring that person to live in the matrimonial homeit will be a stated address rather than elsewhere, and attaching a curfew to that person. That could well be a term of a bail condition. Clearly the Government have to consider how to reconcile the bail condition with the temporary order that is being discussed now. That is a sound point, but I am not sure that it is addressed by the amendment.

James Brokenshire: As I think I said at the outset, the amendment is designed to provoke debate and to probe the provisions. It strikes out some subsections, because I cannot see how they work in the context of some other issues. Bail could be one of them. Although I appreciate that the police have to take account of other issues and other circumstances relating to P, which may not become apparent until after the event, it may be felt that it is necessary to make an order to protect the victim of domestic violence. I understand that desire, but the clause does not appear to take account of some of the knock-on implications, so it is a question of whether further reflection on the drafting might be appropriate.
Does anything specific need to be provided and what mechanisms might need to be adjusted in terms of the arrangements of the court? How flexible will the court be in finding some means of disposing or resolving potentially conflicting issues? Obviously we will come on to gang injunctions, which are in a separate court, and we shall consider how one might deal with a gang injunction in a civil court as compared with a domestic violence protection order in the magistrates court and what might need to be done to bridge the gap. Those examples throw up a legitimate point in terms of how one should address potential conflicts between the requirements of the notice and any other provisions.
Justice makes a separate point about rendering someone homeless, suggesting that inquiries should be made by the police officer of the local authority in terms of the requirements, for example, to prohibit P from entering the premises. I understand the point that the Government are making about savings on homelessness if the victim is forced to leave the property. That point comes up clearly in the regulatory impact assessment. What requirements are there for the police to have contact with the local authority, given that when the notice is issued the facts may not have been made out to address the potential homelessness of the person in receipt of the notice? When it comes to analysis and examination the order may not be granted because the facts do not support it. Therefore the recipient of the notice would have been made homeless for that period, which could be quite extended if court hearings are delayed because further information or evidence had to be put into effect.
The role of the DVPN in relation to criminal sanctions is rightly highlighted in the regulatory impact assessment. It is interesting to develop the point on bail conditions. The regulatory impact assessment states, on page 5:
Given the high attrition rate from arresting for a domestic violence incident to charging for a domestic violence related offence, it is proposed that the key policy gap in protection is when a suspect is released with a caution or No Further Action and where a suspected perpetrator is charged early in their offending cycle which may not prompt a decision to apply bail conditions.
I can understand that there is an intended interrelationship between a DVPN and a case in relation to perhaps a criminal offence that the police are examining. Bail conditions may apply, but at that stage they do not require the person suspected of the offence to leave the property.
It may come down to training and guidance, but there needs to be a clear understanding of how issuing a DVPN needs to relate to other criminal proceedings. An antisocial behaviour order, for example, can be granted either on a stand-alone basis or in conjunction with other proceedings. It is a question of being clear about that interrelationship. I assume that the issuance of a DVPN is not, and should not be, intended to prejudice, inhibit or restrict any other criminal proceedings that might arise from the same facts.
When the police have a reasonable suspicion, two routes can be adopted. A DVPN can be issued to provide breathing space and address the protection of the victim, such that more sufficient or appropriate non-molestation orders can be put in place, but that should not prejudice any criminal case that may flow from the self-same facts and circumstances. I wonder whether it should be made abundantly apparent in a DVPN that the recipient knows beyond all doubt that the notice is a means of protecting the victim but that it does not suggest that criminal sanctions or any further action will not be forthcoming in relation to those self-same circumstances. The application of such provisions is not exhausted.
When issuing a notice, a judgment has to be made about protection of the victim. As the regulatory impact assessment notes:
For domestic violence victims, separation is a dangerous time and being pursued after separation can be particularly dangerous...In the immediate aftermath of reporting to the police, a victim may be considering leaving the relationship and will need both protection and time to consider their options for the future.
We understand that domestic violence is a spiral of violence. It is a continuation of violence, seemingly without an end point. However, the question is whether issuing a notice heightens the risk to the suspected victim. What further consideration should be given to the victim? The notice focuses on the recipient but does not talk to the victim. Interestingly, the notice does not state whether a copy is to be given to the victim at that point. A DVPN does not necessarily have to be given within the home environment; it could be given to the alleged perpetrator at their place of work or somewhere else.
If a DVPN could trigger a heightened sense of vulnerability and risk, should there be a requirement for the notice also to be given, for informational purposes, to the person whom it seeks to protect? It could be done more informally, but given the potential risk, I am concerned that notification is not to be given to the person seeking to be protected at the same time as the notice is issued.
The clause is silent on the issue. It may be the case that notification should happen by implication and practice, but given the heightened state of vulnerability and the potential for a dangerous situation, the order should allow the person to be notified. Equally, that person should know the terms of the order. If it is intended to protect them, surely they should know whether the recipient is prevented from going to their home, or from going to a certain space around it and whether the notice covers a certain period. If there are breaches, the person intended to receive the benefit will then be able to report them to the police. Action can then be taken in relation to breaches, and effective consideration can be given. The notice would thus operate in the way in which it was intendedto protect the victim from any further reprisals or actions against them.
Although it probably falls outside the provisions of the clause, one would hope that appropriate support services would be in place when the notice was issued to aid and protect the victim, and to prevent risk and the dangers that the regulatory impact assessment has rightly highlighted.

Tom Brake: Does the hon. Gentleman agree that there may be circumstances when the victims might choose to leave the family home when a DVPN has been issued, because they are worried about the additional risk? If they do not know that a DVPN has been issued, or its content, they may feel that they have been placed at greater risk and that they have not been able to take a decision to leave the family home.

James Brokenshire: The information point is important. If the victim is fearful and a DVPN has been issued, they will want to know that they have that protection. It is therefore important that there should be a requirement to issue a copy of the notice to that person. The interesting point that the hon. Gentleman does not raise is that the DVPN and the notices requirements take us back to clause 21(8) on the prohibitions. If the victim moves to different premises, I assume that a separate DVPN may need to be issued to prevent any molestation, or contact with the victim in their new premises. Is clause 22 sufficiently widely drawn to allow that to happen? It is a question of allowing or permitting modifications to the DVPN to reflect changing circumstances.
The notices terms and expression are rigid. I am trying to be helpfulthe Minister may not think soby looking at how the provision would operate in practice. We should reflect upon whether the drafting properly reflects the Ministers intentions to get it right and ensure its operation in relation to the cooling-off period.
The DVPN does not have a maximum periodit is not limited to 48 hours. It can be extended further until either an order is granted or the court is able to determine the application. That could be a long time indeed in a complex case, if further interviews or evidence are required or forensics have to be examined. I had understood that the notice allowed a cooling-off perioda relatively short time to allow the victim to seek advice, assess their options and see what other provisions, sanctions or protections might be available to them by virtue of the law, or see whether mediation or other measures might be appropriate to protect them.
As I read it clause 22, the operation period of the notice could be longer than the period of the order itself. I question whether that was the Governments intention. Obviously, a DVPO is intended to last from 14 to 28 days, but, with court hearings and the need to obtain evidence, it would be easy for a DVPNwithout the courts overview and interpretation or an applicationto last much longer than the protection order itself. It could take several months to obtain all the information and assess the evidence to issue an order that lasts 28 days. Judging by the language in the clause and the RIA, I am sure that that is not the intention, so if we are creating a cooling-off period, what is the intended maximum period? Should the notice state a maximum period to provide clarity and ensure that someone is not subject to a DVPN for a very long time, when it was intended to provide a short cooling-off period?
It is easy to think of a complex case in which the children, as contrasted with the partner, of the alleged perpetrator make different allegations. How would those elements interrelate, particularly, as the Minister said, in view of the fact that separate DVPN notices need to be issued for each person they seek to protect? I am sure that the Minister will reflect on this and the previous debate. I think he said that there would effectively be a consolidated hearing, looking at all facts and the circumstances of all of the alleged victims. We would not want separate DVPO hearings for each individualthat would not be sensible or a good use of the courts time. Would it be possible to dispose of a notice at one hearing because the facts did not relate to that individual, but to extend the notice period under another notice issued for a child, for example, to see whether any abuse of that child had taken place? We could have one notice ending and another continuing.
There is a relationship between the issuance of the notice and the setting out of its contents. Could notices differ slightly, depending on the circumstances of the victim? I am assuming that for one household with multiple potential victims, the DVPN, as stated, should be the same, with the same facts and circumstances, but that may not be the case as there may be subtle differences. It would be useful to understand whether that is the intention.
I should appreciate clarification on subsection (1)(e), which says:
A DVPN must state...the provision that a magistrates court may include in a domestic violence protection order.
I do not understand what that language means. Can the Minister explain it to me? It may be that I was looking at it late in the evening. From a cold reading of it, I am not sure whether it seeks to impute provisions that a magistrates court could apply on a non-molestation order, or if it is making a separate point. I do not understand what the paragraph is intended to provide for. It may be that there is some subtlety that I do not understand, but I look forward to the Ministers response and clarification. It may apply some flexibility to dealing with the issuance of other ordersthe fact that the perpetrator could be on licence, tagged or something like that. I do not know. The proposal may be trying to address some of the points I alluded to earlier in this debate. I would be grateful if the Minister clarified that point.
We move on to the connected point of what is stated in the notice and the service of the notice that crops up in relation to clause 22. The subsequent parts of it fall slightly outside the ambit of the amendment, but interrelate with it. It says:
(2) A DVPN must be in writing and must be served on P personally by a constable.
(3) On serving P with a DVPN, the constable must ask P for an address for the purposes of being given the notice of the hearing of the application for the domestic violence protection order.
We will see later that the notice of the court hearing is appropriately served if left at the persons address. I question whether service should be personalat least in relation to the first court hearing. If the hearing must take place, as is said in the notice, within 48 hours of service, that implies that when the notice is received, the time of the court hearing is not necessarily known. There would then be a requirement for subsequent notification. Given that the period is only 48 hours, surely that would need to be by personal service. Personal service can mean leaving something at someones address or handing it to the person, to ensure that he is then able to go to court to rebut or make representations. In that way, a sense of justice is applied and P is able to be represented at the hearing, rather than the hearing ending up being adjourned simply because P is not there because he did not receive notice of the hearing. That information would not be stated at the same time as the DVPN is served, but perhaps it should be. One may already have sought to obtain permission of the court to know, contemporaneously or slightly before one has to apply for a DVPO, so that the notice can be clear as to when the court hearing should take place. That would certainly aid justice to take place and the relevant facts to be presented at the earliest possible time for the court.
One final point on the contents of the DVPN relates to the sanctions for breach. The Minister made it clear in the evidence he provided that a breach of an order would be treated as a contempt of court. I understand that, so the relevant sanctions and provisions would apply as if it were a contempt of court. However, at the stage a notice is given, the matter has not come to court. The effects of the notice have not been confirmed by virtue of the order. I therefore question what sanctions would apply for breach of the notice. In other words, if the notice has been issued and the first 48 hours have not yet elapsedor if they have, the hearing has been adjourned and therefore the operative part is the notice itself issued by the policewhat sanctions or provisions would apply for breach of the notice?
I may be wrong, but that does not strike me as being a contempt of court, because the court has not approved the notice. The police officer has not gone to court to obtain the notice: the officer has simply issued a notice administratively against the person, with the appropriate authorisation, based on that officers assessment of the facts and circumstances. There does not appear to be any statement in the notice on what happens in the event of a breach. For the operation of the notice to be effective, surely a statement of sanctions or penalties that will apply if the notice is breached is important. The recipients would then be clear that it was not only a piece of paper that they had been given by the police telling them not to do certain things, but that it had teeth that resulted in sanctions and penalties. That should be stated expressly on the notice, as should how the sanctions would operate and be incorporated within a contempt-type application.
It is important that the notification and contents provisions are properly drafted. I apologise to the Committee for going through such matters in detail, but they relate to the effective operation of the whole system if we are to rely on the notices to be preventive. I hope that the Minister can respond favourably to my argument. If he cannot, will he reflect and come back on Report to discuss those points that have validity, so that we can ensure that the system operates as he intends it to operate?

Douglas Hogg: I fancy the Minister feels that he has been well and truly probed by my hon. Friend, so I can be relatively brief. I have a lot of sympathy with the general approach, in that it is desirable to use his amendment to question the contents of the notice. I am not with him all the way; by removing some of the particulars from the notice, he would be going further than I would wish.
To start with, it is important that, if there is to be a power of arrest, the notice should say that the person can be arrested without a warrant. The person in question needs to know that. Secondly, if my amendment carries the day such that the constable may rather than must make an application for the order, clearly there has to be a modification of clause 22(1)(c) because there would not necessarily be a hearing within 48 hours or, indeed, a hearing at all.
That is a drafting point, but much more substantive is the good point made by my hon. Friend that the notice, under the provisions of clause 21(8), can clearly restrict the ability of the person to live at a stated address, probably the matrimonial home; however, there may be other legal orders that require the person to live in that address, such as bail conditions. A court will often require a person on bail to reside at a particular address and, indeed comply with curfew restrictions on that address; police bail can have the same effect. Also, have we considered control orders, about which there has been huge discussion? They do exactly the same. I believe that there are requirements under immigration law, too, but I am not familiar with them and it does not matter for these purposes.
I reinforce my hon. Friends point that the Government must think how the Bill will deal with a case where a notice is issued that is incompatible with a previous order of legal effect. One theoretical answer is that the person affected by the notice under clause 21 informs the constable or goes back to the court that issued the bail requirements or the Home Secretary who issued the control order and asks, What are you going to do about my difficulty? However, that is not a practical answer. We must address the issue to which my hon. Friend drew attention.
Another point on which I have much sympathy with my hon. Friend is that the notice could run for a long time. He is right that it could exceed the period of the order itself, which, under clause 25(10), is subject to a cap of 28 days. Once one grasps the fact that a court may adjourn the hearing of the application under clause 24(8), one realises at once that one can get oneself a running notice, because under clause 22(1)(d), the notice will remain in effect until the application has been determined. However, if a court uses the clause 24(8) powers to continue to adjourn the hearing on the application, one then has a running notice, which could well exceed the period of the cap. I accept that it is probably necessary to impose a cap on the efficacy of the notice, or, alternatively, to say that an order must be made within a prescribed time, as in clause 25.

James Brokenshire: Will my right hon. and learned Friend confirm my understanding that the court has no discretion to change the notice once it has been granted? It does not appear that there is discretion to change itthe Bill simply states that the DVPN will remain in place. That is not even a matter that the court needs to consider.

Douglas Hogg: My hon. Friend is probably right. I have not asked myself that question, so I hope he will forgive me if I do not give a definitive answer. The Minister is probably better placed than I am to answer that question immediately. If not, he will get advice from those who are scribbling him notesof course, we cannot see what goes on. I do not know the answer to my hon. Friends question, but I think he is probably right.
Those are the points that I want to make. The Minister has been well and truly probed, and we look forward to seeing the wounds.

David Hanson: Being probed is an occupational hazard in my job. I have no objections to thatit is a valid part of the parliamentary process.
The right hon. and learned Member for Sleaford and North Hykeham and the hon. Member for Hornchurch have raised many matters that the Home Secretary and I discussed when originally approached by the Association of Chief Police Officers about how to fill a gap in domestic violence protection legislation. I hope that I can answer their concerns.
I emphasise again that the legislative framework in the clauses allows for a pilot to take place in two areas for six months after the legislation is approved by Parliament. Brian Moore, the chief constable of Wiltshire, who leads in ACPO on such matters, wishes to ensure that those issues are dealt with via the pilot, so that we learn lessons from its operation and, if need be, tweak the provisions. That does not take away valid points that colleagues have mentioned today.
The right hon. and learned Gentleman and the hon. Gentleman have covered issues such as bail, duration, support, sanctions and conditions. I will try to cover each of those in turn. First, on the valid point that individuals may be subject to other orders, it will not be unheard of for a court to come across an individual who already has an outstanding bail requirement to live in a property, because domestic violence may be an element of general behaviour that leads to that type of requirement. I can envisage a circumstance in which someone is subject to a control order, but given the number of control orders we have, that is a very limited opportunity.
The key point is that an individual may be subject to competing sanctions. One of the reasons why we have given a superintendent or above the authorisation to approve a domestic violence protection notice is that it would be the culmination of a series of activities. The superintendent who ultimately authorises it would, when doing so, ask the question, Is the individual at that property on bail? Is the individual on a control order? Is the individual subject to a court recall in the next 48 hours? Those are questions that the person authorising the domestic violence protection notice would legitimately ask as part of that consideration. I hope that that will be tested during the pilot. The hon. Member for Hornchurch has made a valid point, which is on the record. I hope that my words will reinforce to the chief constable of Wiltshire the fact that such matters will need to be looked at as part of the training and support on authorising orders.

Douglas Hogg: I take the Ministers point that a superintendent will be aware of a bail requirement or control order, but presumably he agrees that if there is a competing order of the kind just mentioned, it is not then open to the superintendent to require the person to live away from the matrimonial home until such time as the previous order has been varied either by the court that issued the bail or by the Home Secretary who made the control order.

David Hanson: The right hon. and learned Gentleman makes a very reasonable point. My point is that in any breach of any orderit usually ends up as a breach before the penalties are put in placethe defendant will be allowed to explain why they breached the order. For example, if the bail conditions are breached in extenuating circumstances, they might have a reasonable excuse for not living at the bail property. They may have been excluded because of action taken under the activity that the clause authorises.
I accept that the issues need to be thought through. A legitimate defence for the clause as it stands is to say that the superintendent should know or would ask questions before agreeing to the order. Secondly, the defendant may have a legitimate excuse for breaching an order to live at a bail property because they are subject to a DVPN and therefore cannot return to the property where they were bailed. I am sure both courts would consider those matters appropriate. They are legitimate points. I hope that that answers the points raised, and I remind the Committee that, subject to the pilot, we can test those issues and examine them further if need be.
The hon. Member for Hornchurch asked about the police and time scales. The police are confident that they can gather evidence in time. Magistrates have confirmed that hearings could occur within 48 hours, excluding Sundays and public holidays, ensuring that action is taken speedily. Our aim is a flexible, speedy response to dramatic and challenging circumstances in which individuals are at risk of injury or worse. A speedy response is possible.
I remind the Committee that the purpose of the order is to enable the police to issue an emergency non-molestation and eviction notice, subject to the superintendents approval, on being called to an incident of domestic violence. In the circumstances described today, a constable will arrive at a property knowing that they had been there before. When the phone call comes to go to the property, they know that they are going to a domestic incident, because that is the nature of the call. If they determine that the only way to resolve it is to remove one party from the premises, they will get authorisation from the superintendent, who will undoubtedly ask, Why are you asking for this emergency power now? The constable will reply, Because there is continuing domestic violence. The next question will be, Who is the individual? They will say, It is Mr. or Mrs. X. The superintendent will ask, What is the background of the individual? The constable will say, We know they are already on bail for another activity at that property. Those are legitimate points of the process; those valid points will be considered by the senior officer and will ultimately be dealt with in a speedy way in the courts. I hope that that satisfies both the right hon. and learned Gentleman and the hon. Gentleman, but I am happy to hear further from them in due course.
Domestic violence protection order adjournment was raised by the hon. Member for Hornchurch. The Bill proposes no limit on the number or duration of DVPO adjournments. The protection for perpetrators, if needed, lies in article 6 of that well-known document, which many hon. Members love and admire, the European convention on human rights. Article 6 ensures that the hearing takes place within a reasonable time. A case being adjourned beyond the 48-hour period would be unlikely to provide grounds for a successful challenge under the convention, but might in due course be possible in the event of elongated proceedings.
I accept the seriousness of such a tool, which could exclude an individual from what might be their family home or business. Such issues weighed heavily on the Home Secretary and me when considering the legislation. Rehousing women and their families in a refuge, in the event of domestic violence, costs some £4,000 a week. We are removing those peoplewho are, we must remember, the victimsfrom their homes to another place, creating uncertainty for them and their families. The temporary homeless nature of an individual, who might have to find a hotel or live with relatives for the period, is an inconvenience and is difficult, but must be considered when understanding why an individual has been involved in domestic violence in the first place. That must be considered carefully against the cost of rehousing a victim. Indeed, the police and courts, in reaching their decision, will be required to examine all the circumstances of the case, which might include whether the perpetrator would be rendered homeless.
I may be old-fashioned in such matters, but I suspect that few perpetrators barred from the family home would not have a friend or relative to stay with or sufficient resource to afford a hotel bill for the relevant period. On occasion that might be the case, and the superintendent and others would need to consider the impact on the individual. The impact would figure as part of the approval process. They might not agree to the order because of what they might deem its consequences: someone sleeping rough on the streets, potentially drinking heavily and causing more police problems. Consideration of what happens to the perpetrator would still be central. For clarification, the issuance of the DVPN can run in tandem with any other criminal proceedings, and would not be affected by one or by the other.
The question of breach was mentioned, and the hon. Member for Woking (Mr. Malins) also raised the issue on the Floor of the Chamber. Clear standards are set for a breach and the DVPO will be dealt with under the provisions of the Magistrates Court Act 1980 that apply to any order of the court. The perpetratordepending on the court outcomecould be committed to prison for up to two months or fined up to £5,000 for breach of the order.

James Brokenshire: The Minister of State rightly highlights the DVPO, but my point was subtly different: the breach could be of the DVPN. In other words, in the first 48 hours, before getting to court, the DVPN is breached. It is not an order of the court, but merely a notice issued by a police officer. Would that be captured in the same way under the provisions alluded to by the Minister? My point was technical and trying to cover that gap.

David Hanson: I was about to go on to that point. The DVPN will state that there is power of arrest, and that the individual can be arrested if they breach the notice. That is a serious point. If the hon. Gentleman is not content, I shall happily take interventions to try further to clarify the matter.
The DVPN would also include a standard paragraph about the terms that the magistrates court could include in the DVPO. In clause 25(6) the hon. Gentleman will see that the
DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.
Furthermore, clause 25(8) states that if P lives in the premises,
the DVPO may also contain provision
(a) to prohibit P from evicting or excluding from the premises the person for whose protection the DVPO is made,
(b) to prohibit P from entering the premises,
(c) to require P to leave the premises, or
(d) to prohibit P from coming within such distance of the premises as may be specified in the DVPO.
That indicates that the standard paragraph that we propose to pilot would certainly take those issues into account.
The hon. Gentleman has also made an important point about casework for the victim, and victim support. I am happy to show that parliamentary democracy works in a wonderful way by considering whether we need to tweak that provision still further before Report stage. We might want to make it more specific, or I might reflect on it and leave it for the pilot. In guidance, we can certainly have a general message that the DVPN should be given to the victim, so that its meaning is clear to them. We can do that in guidance without legislation to back it up, and that might satisfy the hon. Gentleman. It is important that the victim knows what has happened and why, what the order means and how it operates, and what his or her legal protections are. I am acutely aware that it may be the first time that the individual has experienced violence, but it will not be the first time that the police or the courts will have dealt with such an issue. We need to ensure that we have a victim-centred approach, and that victims know exactly what the order means for them and their family and what a breach of the order would signify. That is an extremely good point, and we can ensure those things in guidance.
I hope that I have covered all the points that have been raised. To be critical after my conciliatory remarks, I say to the hon. Member for Hornchurch that amendment 153 would remove three of the five prescribed contents of a DVPN and destroy the concept of the order. It would remove the power of arrest and the hearing within 48 hours, and would prevent the DVPN continuing until the DVPO had been determined. If I agreed to the amendment, effectively we might as well rip up the piece of paper and throw it away. I appreciate that the amendment is a probing one, to tease out issues. I hope that, having been suitably probed, I have responded in a way that helps the hon. Gentleman to withdraw his amendment.

Douglas Hogg: I am grateful for the Ministers relatively constructive response, but I have two specific points to make. First, on the power of arrest, my hon. Friend the Member for Hornchurch is entirely right that the power of arrest should not arise for a breach of the notice unless the police officer has reasonable grounds to believe that the notice has been served. It is not sufficient to leave that to guidance, or to the pilot; it needs to be in the Bill. An arrest power is important. It is obviously possible that the person does not know of the notice or its contents, and in those circumstances an arrest would be unjust, especially as I see from clause 23 that he must be kept in custody. Proof of the service of the notice, or some other suitable wording, should be in the Bill.
Secondly and differently, my hon. Friend and I have spent some time considering the issue that another order may require the person to live at a stated addresslet us call it the matrimonial home. The Bill should state that the superintendant should not issue a notice requiring the person to exit the family home, if I may describe it in that shorthand way, if there is an existing order of the court or some other lawful authority requiring them to reside at that address. It is not sufficient to leave these matters to pilots or to guidance because powers of arrest and custody will follow for breach. We must address this question in statutory language.

David Hanson: There is a disagreement between us on that point. I think that these issues can be covered using the methods I have discussed. The superintendant would know that there was another order against the individual receiving the DVPN. If they did not, they would not be doing their job properly. There is sufficient clarity in that area and I am not minded to accept that criticism from the right hon. and learned Gentleman.
On the right hon. and learned Gentlemans first point, I refer him to page 62 of the Bill. Clause 22(2) states:
A DVPN must be in writing and must be served on P personally by a constable.
I hope he will accept that it is fairly clear that an individual will be served with a DVPN in writing by a constable and that it will be clear to them that in the event of a breach, they will be arrested and held in custody.

Douglas Hogg: I accept that.

David Hanson: With those comments, I will sit down and allow the hon. Member for Hornchurch to debate. I do not know whether I am giving way or letting him speak.

James Brokenshire: This debate has been helpful because it has clarified some of the practical issues with the operation of notices and orders. I respect what the Minister has said about wanting to reflect on these points and am grateful to him. There is a point of difference between us regarding his suggestion that this can be dealt with simply through the pilots. It is clear from the debate that there are issues that are recognised up front. If they are apparent now, they should be addressed, and in certain cases need to be addressed, in the Bill or in guidance.
The Minister said that speed might be a relevant factor. I understand the intention behind the provisions of protecting the victim, and we should not lose sight of that. I am trying to flag up the fact that we may need a mechanism to address bail conditions or other provisions that conflict with the DVPN. There does not appear to be such a mechanism, but there could be an application to a court to get some form of DVPN that overrides the issue. It could be assessed that there has been an assault serious enough to justify a DVPN and the provision could be used almost in a protective way to allow a cooling-off period to prevent further violence. That comes within our contemplation of this matter. We could reflect on whether a further court adjustment could be obtained to put the victims interests first.
I understand the Ministers point about the superintendant. If we elevate things to such a level, we would expect the superintendant to make the inquiries. However, if there is an element of speedof necessityinquiries may not be complete when it is felt that a DVPN should be issued. It may subsequently come to light that, as a result of an omission or error, the DVPN does conflict with other provisions. If I understand the Minister correctly, the onus is on the superintendant to make the inquiries. The implication is that if that does not happen, and there is an omission, the notice might be defective. I hesitate at that, because it introduces some uncertainty, and I want to get the provisions right to ensure that they operate appropriately. As I said, the court may have the right to modify the terms of the notice in the 48-hour period to address some of these issues.

David Hanson: I hope this is helpful. For the purpose of this discussion, I am the superintendant who has to approve the order. The first thing I will do is type the perpetrators name into the police national computer, and bail conditions or other issues would then show up. Given the way in which I have described the process, it is not impractical for the superintendant, even with a need for speed, to say, Whos the individual? Whats their form? Whats the impact if I sign the order?

James Brokenshire: I hear what the Minister says, and it may be true of the bail conditions, but would it apply equally to all terms of antisocial behaviour orders or gang injunctions in civil court proceedings? I agree with the requirement to make inquiries, and it is absolutely right that it should be in place, but I genuinely hope that the Minister is right.

David Hanson: For the record, let me state that any conviction of any individual would be logged on the police national computer. The first thing the superintendant would docertainly following todays debatewould be to check the individuals circumstances. I hope that that meets the hon. Gentlemans genuineI accept that it is genuinepolicy concern.

James Brokenshire: I hear what the Minister has said about convictions. All that I would say is that other quasi-criminal civil orders may not necessarily be apparent at the time. I ask him to reflect on that to ensure that we do not undermine the intent and the spirit of the clause. The Minister may not think so, but I am trying to help him to get the provisions right. I would not like us to end up with an article 6 ECHR applicationthis brings us on to the issue of there being no limit on the time periodwith the court effectively undermining the whole operation of the clause or casting doubt on it.
As we debated in relation to other issues in the Bill, if there are questions about the time period and the notice is wrong, the recipient might be harmed and might lose their liberty. I appreciate that we cannot prevent court cases from arising, but I would not want us not to consider these issues and end up with a problem down the track. The Ministers approach is sensible and considered, and I hope that he will reflect on any questions that arise at this point to satisfy himself and the Committee that this is not an issue or that there are other ways of dealing with it. If not, I hope that we can adjust the provisions in the Bill so that we do not subsequently get into a debate about things not having been stated in it because they were only matters of practice and so that the operation of the provisions is not undermined by an ECHR-type challenge.

David Hanson: The hon. Gentleman makes a valid point. In theory, the DVPN period could be longer than the DVPO period, but that is unlikely. Ultimately, the length of time for all these measures is in the hands of the court and the police. It is not in the interests of either to have the issue dragged out over a longer period of time.
I do not wish to duck the issue today, but, again, I am happy to put the matter into the guidance, and we can consider how to tighten it up. When we look at the pilot and the guidance, we can ensure that those issues are addressed in a fair and effective way.

James Brokenshire: I am grateful for that assurance, because it is important that we get the matter right.
In closing, I shall return to the issue of the sanctions that might apply in relation to the DVPN. In the next clause, we will address the issue of breach so I will not tread on that territory. I understand that there is the power of arrest. The Minister of State was right to say in response to the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham that there is a power of arrest and that the DVPN must be served personally on P, but what happens then? I am still not certain. I respect and understand the point that the Minister of State has made about a breach of the order and that that is a contempt of court, but I am still not certain what the sanctions are for a breach of the notice. In other words, if the notice that is issued by the police officer is breached, is that regarded as contempt of court? I am not sure whether it is. It may be that I have missed a point of detail, but it seems that breach is stated as creating a power of arrest.

David Hanson: To wrap up the two points made by the right hon. and learned Member for Sleaford and North Hykeham and the hon. Member for Hornchurch, subsection (2) states:
A DVPN must be in writing and must be served on P personally by a constable.
In other words, P knows that he or she has a DVPN. Subsection (1)(b) states that
a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPN.
I think that that covers those points. Perhaps I have misunderstood something, but I presume that there is a sanction of arrest, if there is a breach of the notice, for immediate custody during that 48-hour period up to the endorsement by the court or otherwise.
Mr. Hoggrose

James Brokenshire: I hear what the Minister says. I do not know whether my right hon. and learned Friend wishes to intervene on me.

Douglas Hogg: I remembered that the Minister was not making a speech, which is why I sat down, but perhaps I can raise a matter with him through my hon. Friend. I well understand how the constable can arrest without a warrant somebody who is in breach of the notice. The problem that then seems to arise is that the notice remains in force until the order is made. If the order is made and the person is in breach of it, there is clear provision for punishment. What is the position if he is in continuing breach of the notice, which has been extended for a period of time, before the making of an order? I do not know the answer to that.

James Brokenshire: I am grateful to my right hon. and learned Friend for that analysis, because it is precisely my analysis. It does not appear that the court, even at that first hearing, confirms the notice. In effect, the notice just carries on. That is a technical issue. I do not want to load the point, so I will give way to the Minister and hear what he has to say.

David Hanson: I am trying to be helpful. I will, if you will allow me, Sir Nicholas, refer to clause 23, which is entitled Breach of a domestic violence protection notice. Subsection (1) states:
A person arrested by virtue of section 22(1)(b) for a breach of a DVPN must be held in custody and brought before the magistrates court which will hear the application...under section 24.
The circumstances are quite clear. P has a DVPN put in their hand personally by a constable. If P breaches that order, the constable can arrest P without a warrant. P is then taken immediately into custody and brought to the magistrates court for the DVPO to be considered. If that DVPO is agreed, P is potentially in breach of it under the other regulations and faces imprisonment and a fine; if not, P will remain in custody.

James Brokenshire: I am sure the Minister will reflect on the Hansard report and if I have not made my point clearly, I apologise to the Committee. If I understand the Minister, he is saying that there is a power of arrest, and if the DVPN is breached, the person is held in custody until the DVPO is disposed of. That is the sole penalty that would apply in those circumstances, and some of the other fines and sanctions that might apply to a breach of the order do not apply; it is simply the retention of the person in custody. I am genuinely grateful to the Minister for that explanation, because that is not how I had interpreted the provision. Having the discussion has helped, albeit that we will come on to the operation of the provisions in the clause when we discuss clause 23.

Douglas Hogg: There is a rather worrying point. Clause 23(3) states:
If the court adjourns the hearing of the application
which I have already referred to
the court may remand the person.
Therefore, the court can remand the person in custody until the order is made. As the court has very wide discretion to adjourn the hearing and, therefore, not make the order, Pat least in theorycan remain in custody for an unlimited period. I do not suppose that is the intention, but from what is in the Bill it certainly appears to be the consequence.

James Brokenshire: Sir Nicholas, I fear that we are already straying into clause 23 and to points I may wish to make on it. I have heard what my right hon. and learned Friend said and I am sure that it will be reflected in the next debate.
The debate has been helpful and I am sure that we will all reflect on it. The intention of my amendment was to probe, and to facilitate debate. It has been detailed, but in light of the Ministers comments and our debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Nicholas Winterton: We have just had a very important and detailed debate, but I note that it lasted nearly an hour and a quarter. We have a lot of other important matters to consider. I hope that all Membersparticularly Front Bench Members, as they are really the ones who are participatingwill use a little self-discipline.

Clause 23

Breach of a domestic violence protection notice

James Brokenshire: I beg to move amendment 154, in clause 23, page 62, line 6, leave out must and insert may.
I appreciate the need for clause 23 and given the seriousness of repeat offending and the risk of violence, which we discussed in the previous debate, I recognise that there may be justification for someone in breach of the notice to be held in custody.
My point is a technical one that the Minister may be able to address. The clause presupposes that breach occurs before the initial hearing; it states that if a breach has occurred, the court
will hear the application for the DVPO under section 24,
and that the application will need to be heard
before the end of the period of 24 hours beginning with the time of the arrest.
In other words, if notice has been served and there has been a breach, the person has to go to court within a 24-hour period. As my right hon. and learned Friend the Member for Sleaford and North Hykeham has already mentioned, that hearing can then be adjourned. If there is a requirement that the person must be retained in custody, it would continue without discretion until the domestic violence protection order has been dealt with.
The clause mentions the hearing for the DVPO. It may be that an interim hearing is sufficient and that the requirement to remain in custody does not necessarily continue beyond that. However, clarification on that point would be of great assistance, for the reasons given by my right hon. and learned Friend. I do not think that is the clauses intentionthe drafting itself may indicate that it is not what is meantbut the purpose of my probing amendment is to test that by questioning the distinction between must and may be held in custody.
The provision will work if the breach occurs on the service of the DVPN or just after. What would happen, however, if the breach occurred after the initial hearing? What happens if a domestic violence protection notice has been served, there is an initial hearing within 48 hours, and breach of the notice occurs after that? At that stage, more evidence and information would be obtained, because it would not be felt that the matter could be disposed of. Does subsection (1) contemplate that? It would not be a breach of the order at that stage, because no order would have been given, but it would still be a breach of the notice. If a breach of the domestic violence protection notice immediately followed an initial hearing in which the court recognised that it did not have sufficient evidence to dispose of the matter, would the person have to attend court to have the domestic violence protection order considered? At that stage, the court might have already recognised that it was not in a position to consider the order, because of the need for forensics and for other evidence and information. It may adjourn with a return date of seven days. How would the provision work in such circumstances?
The court would have already recognised that it was unable to deal with the DVPO within the 24-hour period contemplated under the clause. The clause therefore needs to be reflected upon not simply in relation to the initial 48 hours, but in relation to what happens when there is a breach of the notice following those 48 hours when an adjournment has taken place, as contemplated by clause 24(8), which centres on the adjournment of a hearing of an application.
It may be right and proper that, having been arrested for a breach of the notice, the person subject to the notice should be brought before the magistrates court within 24 hours for the court to decide what should happen. However, that is a slightly different scenario from that envisaged in the drafting of clause 23(1). Therefore, my probing amendment is to test whether the language needs to be slightly tweaked to deal with such a situation.
My right hon. and learned Friend has tabled a similar amendment to clause 24. A person must currently be held in custody pending the court hearing, and I understand that is intended to be for a limited period to balance risk. A limited period without judicial oversight would not be appropriate, therefore it is right that someone should come before the court. We need some clarity from the Minister, however, on the intentions behind clause 23. If there has been an arrest and a breach, is the intention that the person should be held in custody throughout the period in which the DVPO is being considered? At that stage, a final determination will not have been made and the application will not have been struck out. On the other hand, is it intended that the matter should simply come before the magistrates court to determine what may be appropriate in the circumstances? I would like to hear the Ministers views. I tabled amendment 154 for that testing purpose and to elicit understanding of the operation of the clause.

David Hanson: I hope that I can explain the provisions, because there is clarity in the Bill. Going back to clause 22, if an individual is served a DVPN in writing by a constable and they breach it within 48 hours, they are arrested and held in custody. That is straightforward and simple. Under clause 23(2), if an individual is then brought before the court, the court may remand the person. Under subsection (3):
If the court adjourns the hearing of the application by virtue of section 24(8), the court may remand the person.
Again, that would be based on the assessment of the risk posed by the individual to the victim, the victims children or family. The court will remand the person if necessary to protect the victim. It could also bear in mind that these are civil proceedings and it can examine the issues in detail.
Clause 23(1) states that the court must remand on breach; again, that is for the protection of the victim. Suppose that a DVPN is served at 8 oclock on a Monday evening; the perpetrator goes away, returns the following day and tries to start another row, so there is a breach and custody is necessary as there could be serious injury to the victim. Remanding the perpetrator in custody is therefore valid. If there has been a breach, it may be clear to the court that a DVPO is necessary because of that breach. It may be a contributing factor in deciding to issue a DVPO urgently because the fact that the breach has occurred shows that there is a real risk to the victim.
Clauses 22 and 23 are phrased in that way to ensure that the victim has immediate protection from the perpetrator, that the perpetrator is immediately removed from the family property and that the perpetrator is put into custody in the event of breach. In the event of the case being adjourned, the court may examine the risk to the individual and the seriousness of the breach; it may determine that there should be further custody or regard that breach as grounds for immediate issue of a DVPO, which carries further penalties for breach.

James Brokenshire: I hear what the Minister says about the breach, as he puts it, perhaps justifying the issuance of the DVPO at that point, but that is not necessarily open to the court. The court must be
satisfied on balance of probabilities that P has been violent towards, or has threatened violence towards, an associated person.
Simply returning to the home does not necessarily make out the first limb. The operative period may elapse because the court is awaiting forensics and other information to ensure that that first condition is met.

David Hanson: Again, under clause 22(2), the DVPN is served in writing by a police officer to an individual. On Monday night at 8 oclock, the individual is served the DVPN. The police officer says, Im serving you this notice, which has been approved by a superintendent who has looked into the case and approved the notice. It says that you mustnt return to this property because of the threat of domestic violence. If you do, you will be held in custody until the case is taken. If an individual goes back to the property, even if only to collect a suit or some post, they are in breach of the notice and need to know the consequencesclause 22 says that there shall be custody as a result.
When the person comes before the court, it will consider whether it needs further information, as the hon. Member for Hornchurch mentioned; whether the case is based on fact and needs to be seen through; and whether there are grounds for a DVPO. In doing that, the court will consider whether it needs to remand the person further if a breach has occurred. If the breach consisted of going back to pick up some post, it might not remand the individual. If, however, it was that the individual went back to kick their partner who reported them to the police, resulting in their spending the night in custody, that would be an entirely different scenario for the court to consider. I have no doubt that the court would make a responsible judgment under clause 23(3) in assessing the need for remand in the event of an adjournment. If the breach is serious, that might be the reason for not adjourning but, moving immediately to the issuance of a domestic violence protection order. The seriousness of the breach might put the victim under threat.
The clauses are all predicated on protection of the victim; they are serious provisions, which I do not expect to be used every day. They will be used where there is a serious risk of domestic violence by repeat offenders who usually are known to the police, and when the police have confidence that the measures will protect the victim. They include the power to give protection by way of custody in the initial 48 hours, and afterwards in the event of an adjournment.

James Brokenshire: I am still not convinced that the drafting entirely deals with my point about the breach of a notice following the initial adjournment of the hearing. However, I have made my point, and I am sure that issues will be revisited if necessary. In the light of the Ministers comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Application for a domestic violence protection order

Douglas Hogg: I beg to move amendment 94, in clause 24, page 62, line 21, leave out must and insert may.

Nicholas Winterton: With this it will be convenient to discuss the following: amendment 95, in clause 24, page 62, line 25, at end insert
, and if no application is made under subsection (2) the DVPN shall cease to be effective.
Amendment 156, in clause 24, page 62, line 25, at end insert
at which hearing the court must determine whether the application should be granted or denied or whether an interim order should be granted pending the final determination of the application at which point the Domestic Violence Protection Notice shall cease to be effective and shall be superseded by the order of the court..

Douglas Hogg: I shall keep in mind what you said about the merits of brevity, Sir Nicholas, and set a good example.
Amendment 94 would remove the word must from the clause and substitute may in the context of the application by the constable for an order before the magistrates court. I have no doubt that in the generality of cases the constable will want to go to the magistrates court to apply for an order, but there may be circumstances where he will not. One is that he may conclude that the early information he received was wholly erroneous that the grounds of the complaint made to him were manufactured, dishonest or inaccurate. In those circumstances, the constable should have the discretion not to trigger the quite complicated procedure, involving sanctions, that is set out in clause 24.
The sole purpose of the amendment is to give a constable greater discretion should he receive information that causes him to conclude that an application to the court is inappropriate.

James Brokenshire: I support my right hon. and learned Friends amendment. Two points arise: first, on the connection between the notice and the seeking of an order; and secondly, on the right of the court to confirm or modify the DVPN. We touched on many such points in previous debates.
My question about the first point is what happens if it is subsequently discovered that the grounds for the DVPN being issued were simply wrong. Under the clause, the constable must apply for a DVPO, come what may, if a DVPN has been sought and served on P. If it is found out that there has been a breach of bail conditions, or whatever the case may beerrors occurred, the facts presented were not what had happened, or further details have come to lightmeaning that it is inappropriate to proceed to a DVPO, there appears to be no discretion for the constable or the police to withdraw a DVPN. The Minister may say that that is what will be analysed and examined through the pilot. I just wonder whether there is sufficient flexibility to contemplate that sort of situation.

David Hanson: I do not want the issuing of a DVPN to be a matter of routine. It needs to be undertaken when a case of domestic violence is so serious that high-level support from a chief officer is needed. For the order to be issued, there must be sufficient grounds for the concern to be reflected.

James Brokenshire: I entirely respect and endorse that aim of ensuring that the measure is reserved for matters that have been properly investigated and considered, given the status of the application and the authorisation needed for a DVPN. However, as the Minister will know, mistakes can happen. He may say that it would be right and proper for the matter to proceed to a DVPO application, because the court would then throw it out, having gone through the formal process, just so that lessons are learnt by those who seek to issue a DVPN, to ensure that there are proper steps, protocol and investigations. If that is the intention, I understand it, and the Minister has put on record that we would have to go through that process and that a court hearing would have to take place. I just question whether that is the intention and whether further discretion should be applied.
My second point is a more subtle one, on the interrelationship between a DVPO and a DVPN and, more generally, between the court process and the criminal court process. Let us assume that processes could take place in parallelthat court proceedings could take place, with criminal sanctions imposed and a DVPN issued to protect the victimfor the reasons mentioned, such as the fact that charges may have been brought in at an early stage or the bail conditions may not necessarily have reflected the context or issues arising from the case, and therefore the police determine that a DVPN is appropriate. What would happen then? We need to understand, in the light of some serious cases, whether there is any possibility that a breach of a DVPN may also constitute a breach of bail conditionswhether there is some overlap between the two. We must also understand whether matters are to be dealt with in the magistrates court in both circumstances, and whether there are other offences that may be dealt with by the Crown court in parallel with the consideration of the DVPN. Is there any parallel jurisdiction between a magistrates court and the Crown court, because of certain more serious offences that are being taken into account?
If someone has breached their bail conditions, and they are now in custody because of that, a DVPO would no longer be required. What would happen to the DVPN in those circumstances? It may no longer be needed to protect the victim because the alleged perpetrator is already in custody for breach of bail conditions. Such an overlap of jurisdictions may apply in those circumstances. I wish to understand better what might happen. The regulatory impact assessment notes that
Though a DVPN could be issued and a DVPO applied for in conjunction with criminal proceedings, it is likely thatif the police are able to apply bail conditions they will not apply for a DVPN/DVPO as this will potentially create further burden when bail conditions can achieve similar aims in terms of protection.
Again, the Minister may deal with that point in guidance, making crystal clear the sort of circumstances when that may apply.
The other point that I wish to raise is about the caseworker, but if we are to have a stand part debate it can be dealt with then. It probably falls outside the ambit of the amendment.

David Hanson: I am grateful for the points that have been raised. I emphasise that the order, when piloted and if approved and extended, would be an order of immediate resort, but really an order of last resort. It is intended to deal with crisis situations, where the perpetrators will usually have been known to the police for some time. To prevent future incidents of domestic violence, the protection order will be put in place within 48 hours so that the individual can be removed from the family home.
The circumstances described by the right hon. and learned Member for Sleaford and North Hykeham and the hon. Member for Hornchurch are possible in the sense that there may be sufficient evidence to say that an order should not have been issued. That is a perfectly understandable position to take. However, I imagine that that will be the case only in the smallest number of incidents; as I said, the DVPN will be used as a last resortin an emergency, if there is a history and if it is approved by a superintendentand that it will be used in a way that protects the victim.
In the event of a miraculous piece of information emerging that there was no domestic violence incident that would cause a threat to the victim, the constable and the superintendent may not think it absolutely necessary to ensure the safety of the victim. If something did occur in such circumstances, however, once the 48-hour period had expired the court would not progress to a DVPO, and that would be the end of the matter. Protection is given by putting a time-limited domestic violence protection notice in place.

Douglas Hogg: Of course, that implies that there has to be a court hearing, and the person concerned would probably feel under an obligation to turn up. If the circumstances are such that the constable does not think it worth going for an order, surely it is not necessary to have a court hearing.

David Hanson: I dare say that it would not be the first time that someone had to go to court to prove innocence, and not the first time that the police did not press charges. It happens every day of the week. Evidence in court does not always meet the original charge. In my view, however, that does not make invalid the point that, if an individual is under threat of domestic attack or even being killed, the order can be used in extremis to ensure that protection is put in place for 48 hours, while the court undertakes a slow-time consideration of the alleged offences.
If we accept the amendments, we will end that discretion. We will effectively be saying that the DVPN, which is designed to give emergency protection to the victim, cannot be used in the way that we intended. Domestic violence is rarely a one-off; it is a cycle of abuse that will have been going on for years. The 48-hour duration of the DVPN will not give most victims time to resolve the situation. That is why we have made it mandatory for the police to apply for a DVPO. In the circumstances that the right hon. and learned Gentleman and the hon. Gentleman have set out, if in that period there does not prove to be sufficient evidence to apply for the DVPO, the DVPO will not be agreed and the individuals will return to their property. They will continue in whatever style of life they wish to continue, and if the violence flares up again, the same principles will apply.
I hope that that gives comfort to the right hon. and learned Gentleman and the hon. Gentleman. The amendment is not necessary or helpful and it would take away the main purpose of the measure, which I remind the Committee is protection of the victim.

Douglas Hogg: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

James Brokenshire: A key part of the operation of the regime is the role of the caseworker. The RIA notes:
When the DVPO has been issued, a caseworker will make contact with the victim to offer support and outline the options available, including advice on applying for longer-term civil injunctions. The caseworker support is an essential element of the policy if it is to increase the victims safety.
Caseworkers will perform a role similar to that of IDVA
an independent domestic violence adviser
(the latter only being focused on high or very high risk victims of domestic violence) and, in cases where there are high risk victims of domestic violence and existing IDVA services, we anticipate that the IDVA will perform the caseworker function.
It is important to ensure that the victim for whom the protection of a DVPO order is sought is given the proper support, advice and guidance to assess what other protections might be afforded to them and what other steps might be taken to create a longer-lasting settlement of the problems. My question is about how that relates with the application for a DVPO. The Minister may say that it does not relate at all, but I would have thought that the caseworker should be involved in the DVPN period, in the run-up to consideration of the DVPO, because the advice of the caseworker or the IDVA at that point might be able to resolve the matter and other relief or appropriate provision might be available. The IDVA or the caseworker may advise that it is not in the interests of the person being protected for there to be a DVPO.
In the context of the application for and subsequent grant of the order, to what extent would there be a role for the caseworker? To what extent would they be able to consider and assist the police or other agencies in the consideration of the application for a DVPO? What grounds would they have to be able to assist the court in its judgment that the DVPO is necessary? That is an important element in making the system work. It would be helpful, in the context of the clause, to hear the Ministers thoughts on the interrelationship. As I see it, what I have described is an essential element in longer-term prevention, protection and support for the victims of domestic violence. My question is about how that interrelates within the operation of the DVPN and DVPO practicalities.

David Hanson: I am repeating myself, but we are trying to get legislative cover for a pilot and part of the pilots purpose is to ensure that we consider not only how the system operates in practice, but some of the mechanisms that are not in the Bill that provide support for victims and, indeed, action on perpetrators. The purpose of the clause is to ensure that we have an application for a domestic violence protection order. I have said to the hon. Gentleman that I shall examine whether the Bill needs to make reference to the caseworker, but as part of the police and other agencies consideration when issuing a DVPN, contact with caseworkers and support services at that time is crucial not only to removing the perpetrator, but in supporting the alleged victim. We have based some of the proposals in the Bill on models in other countries and, under the Austrian modelone of the key determinantsthe police liaise with the caseworker when the DVPN is issued.
I anticipate that, if the pilot is successful and we roll out the provisions nationally, on a phased basis, there will be support for trained caseworkers involvement at the time of the issuing of the notice. It is important that that is so. As I said, I am happy to look at the matter. Part of the pilot will be to examine how we integrate support services to meet the needs of the victim at the time of a notice being issued. That is our intention downstream, subject to resources and the caveat that the notices and the support services might be in the hands of agencies not under the control of the Government. We want the pilot to take place so that we look at such issues and their complexity during the phased rolling out of the DVPNs, and that would be on the grounds that support mechanisms were in place for the victim.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25

Conditions for and contents of a domestic violence protection order

Douglas Hogg: I beg to move amendment 96, in clause 25, page 63, line 4, leave out two and insert three.

Nicholas Winterton: With this it will be convenient to discuss the following: amendment 97, in clause 25, page 63, line 9, at end insert
(3A) The third condition is that the court has considered any representations made by P as to the issuing of the DVPO or as to the provisions contained therein..
Amendment 98, in clause 25, page 63, line 36, at end add
(12) P may, during the period that the DVPO is in force, apply to the court to discharge or vary the DVPO, and on that application the court may make such further order as it thinks just..

Douglas Hogg: I can be brief. The two substantive amendments are designed to ensure that the principles of natural justice are complied with. The first would add a provision whereby the court should hear such representations as P wishes to make, assuming that P wishes to make any and is alone. It is the duty of the court to listen to representations. It will be said that article 6 of the conventionand this and thatalready implicitly makes such a provision, but the truth is that legislation often states things found in other legislation. It is helpful for legislation to make the duties of a court or other duties absolutely plain. If it were the duty of a court to listen to representations, there is no reason why the statute should not state that and every reason why it should.
To those who would say that such policy is not usual, I would say that they are not right. We discussed the Criminal Evidence (Witness Anonymity) Act 2008 on the Floor of the House 18 months ago, when it was taken as emergency measure, and I recollect that it provides the court with a duty to hear representations if they are to be made. I can doubtless find many other examples of that, so the Committee should insist on such an obligation being mentioned in the Bill.
The other measure is not implicit under article 6, but it would enable a court to vary or discharge the order on an application by P, if P satisfies the court that there are good reasons for varying or discharging it. It is true that an order has a fairly limited period. It can run only up to 28 days, but within that time, as my hon. Friend the Member for Hornchurch said, P can suffer considerable discomfort. That person can be outside the matrimonial home and have no obvious place in which to reside. We should not assume that P necessarily has means to take up residence in a hotel or has some obliging friends.
If the court can be persuaded that the terms of the order should be relaxed, the court should have power to do that. That is the effect of the second of the two substantive amendments I am placing before the Committee.

David Hanson: On the lead amendment, the right hon. and learned Gentleman has made a similar case to the one that he made in relation to clause 21(3) and the domestic violence protection notice, namely, that representations should be made before the notice is issued. That is fair and proper. Under current legislation, if a DVPN is applied for, the perpetrator has the right to be heard as part of his right to a fair trial under article 6 of the ECHR. That does not need to be put specifically in the Bill. The individual automatically has the right to make representations under that article, and the amendment would create unnecessary duplication.
The second point is a valid one to consider. However, it is one that I cannot accept for the simple reason, as the right hon. and learned Gentleman himself has said, that the order has a maximum duration of 28 days. There are two issues to be considered in my rejection of his amendment. One is that the victim needs to have certainty. A malicious, obstructive individual who wished to go back to the courts to seek a variation of the order could do so, and the victim would not have certainty during that period. The order might be overturned at any time. This is all about protecting the victim from domestic violence, and such uncertainty would be too much for the victim to bear.
Secondly, I suspect that such a provision would be open to malicious use, which would put extra burdens on the court service, the police and the support services. The amendment would cause uncertainty in relation to an order with a maximum duration of 28 days. There might be cases in which that order needed to be varied. I can accept that such situations could arise. The downside of the variation if the amendment were accepted would be too much to bear for the people we are trying to protect.

Douglas Hogg: I am bound to say that I do not agree with the Minister, but I recognise the doctrine of the big battalions, and on that basis I am not going to press it to a vote. I beg to ask leave to withdraw.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

James Brokenshire: I have a few general points about clause 25 and would be grateful for the Ministers response. Subsection (2) makes it clear that to satisfy the first conditionthat P has been violent towards or has threatened violence towards an associated personthe standard of proof is on the balance of probabilities. That might be regarded as the civil standard of proof. The Minister may be aware of a line cases and one specific case, that of R v. Manchester Crown Court ex parte McCann. That related to antisocial behaviour orders, but also made some more general points about the application of the civil standard of proof to quasi-criminal orders, the question of the seriousness of the matters involved and whether there should be a heightened civil standard.
Subsection (2) states that the court has to use the civil standardthe balance of probabilities. The interesting thing to note from the R v. McCann judgment and its potential application to this type of order, is highlighted by Lord Hope, who said:
There is now a substantial body of opinion that, if the case for an order such as a banning order or a sex offender order is to be made out, account should be taken of the seriousness of the matters to be proved and the implications of proving them. It has also been recognised that if this is done the civil standard of proof will for all practical purposes be indistinguishable from the criminal standard.
The case related to antisocial behaviour orders, but it has been interpreted as applying more widely to quasi-criminal orders that step between the two, in which facts must be proved, the issue is quasi-criminal and there are sanctions for breach.
The Minister might say that he has sought to be specific by using the term balance of probabilities, but will that be distinguished from the civil standard? Essentially, they are one and the same. Will using that language clarify the issue? That route was adopted in gang prevention orders, for example, which have also not yet been tested on that specific point.
Lord Hope made the further point that such orders
do not involve the bringing of a charge because the purpose of the procedure is to impose a prohibition, not a penalty. But the domestic answer to this question does not resolve the issue, because for the purposes of the Convention
that is, the European convention on human rights
it is necessary to look at the substance of what is involved and not the form. Moreover the question cannot be answered according to what Parliament is thought to have intended. In this context it is the effect of what Parliament has done that has to be examined.
Although I recognise that some attempt has been made to indicate whether the McCann case would apply to the orders, it appears to be an issue of substance over form. Has the Minister considered the application of the orders, and what does he expect will be the effect on their usage, given that the circumstances that cover a domestic violence protection notice might equally involve criminal issues?
The second point involves children in the context of the courts considerations. Given the clear link to subsequent offending and violence, should the court have any specific duty to examine the position of children in deciding the appropriateness of the order? I am probing what clause 25 requires the court to take into account.
As we have heard, domestic violence can have a significant impact on children. The NSPCC has shown that 26 per cent. of 18 to 24-year-olds have lived with violence between their parents and carers, and that 5 per cent. say that it is frequent and ongoing. Children are affected physically, socially, emotionally, psychologically, developmentally, economically, educationally and sexually in complex and interwoven ways. As we have heard in previous debates, domestic violence has a significant impact on children.
Subsection (4)(b) states that the opinion of any other associated person living in the premises should be taken into account. Children may be unable to express their feelings. In drafting the provision, did the Minister take that into account and consider whether there should be a report by childrens social services or a child safeguarding board, given the inter-relationship with such agencies, before domestic violence protection notices are issued and DVPOs are granted?
Is the language of the clause wide enough? As we have heard, it is required for orders and notices to be made separately. Subsection (6) says:
A DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.
That is a specific order relating to a specific individual, so other considerations may need to be taken into account if children are involved.
Will the Minister clarify how the time period of 14 to 28 days was arrived at? Liberty says in its briefing note for this Committee:
There seems little rationale for these figures other than the intention that this will provide a cooling off period and allow next steps to be considered by the suspected victim. Given the speed with which non-molestation orders can be applied for and granted, we are again unsure as to need for such an extended period.
That is Libertys view. It has raised its concerns in relation to these orders. I recognise the importance of what is being stated here. Is there any science to the 28-day period? It may simply be a question of the Ministers judgment as to the appropriate period to allow alternative arrangements to be considered and for appropriate support services to be put in place. Again, it might be helpful if the Minister set that out.
Finally, the clause does not restrict any further application for a domestic violence protection order being made on the expiry of a previous order. I can understand that, because circumstances can change. As the Minister will understand, there may be some concerns about rolling domestic violence protection orders being granted one after the other. I do not believe that that is the intention, because the purpose of these clauses is to provide a cooling-off period for a longer lasting analysis and settlement of the arrangements. Is it buying time for other remedies or does it become a remedy in its own right? My understanding is that these provisions are intended to buy that window of opportunity rather than to be a long-lasting remedy. If orders can be granted one after another, will there be any limit on the number of orders that can be granted? I assume that only one order can be granted, but I look forward to the Ministers clarification.

David Hanson: On the 14 to 28-day period, I am not sure on whose behalf Liberty is raising these issues. I presume it is on behalf of the perpetrator, as they are being kept away from their family home for up to 28 days. Well, I am sorry, but if the courts determine that an order is appropriate, it is because the victim is at risk. I am on the side of the victim, not on the side of the perpetrator. Let us put that one aside for the moment because it reminds me why I do not subscribe to Liberty on these issues.
The 28-day period provides a reasonable time for cooling off and a reasonable time for individuals to have in place an alternative form of action to help to prevent domestic violence, be it intervention on the perpetrator or support to the victim. It is a judgment. It is not a long period of time. It is less than a month in most circumstances and I do not think, on reflection, that Libertys representations cause me too much worry because I am on the side of the victim in this case.
The hon. Member for Hornchurch made some important points about the civil standard of proof. DVPOs are civil orders and the civil standard of proof is on the balance of probabilities, which is what we have put in subsection (2). The courts have held that a heightened version of the civil standard is appropriate where allegations of serious wrongdoing are made and there are serious consequences for the person against whom the order is being sought. The McCann judgment will ultimately be up to the court, but there is a major difference between ASBOs and DVPOs.
In relation to ASBOs, the courts have ruled that this heightened civil standard is effectively indistinguishable from the criminal standard of proof, which is beyond reasonable doubt. There are differences between ASBOs and DVPOs in that ASBOs can be made for a significantly longer period of time, can include a wide range of conditions and can carry the risk of prosecution in the event of breach. Ultimately it will be for the court to determine whether the balance of probability requires a heightened civil standard of proof.
As for there being no provision for further DVPOs, I would expect that if a victim wishes to put in a further request for protective measures such as non-molestation orders, this will happen within the current time frame. I hope that that helps to clarify the purpose of the clause. I commend it to the Committee.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four oclock.